ALJDEC decisions subject to certification as final

2016A-4440-ROC · Registrar of Contractors · 2017-03-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Registrar of Contractors

COMPLAINANT

-v-

TEC The Eden Company Inc

Pending License Application NO.161698

APPLICANT

No. 2016A-4440-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 6, 2017

APPEARANCES: The Arizona Registrar of Contractors (hereinafter “Registrar”) was represented by Assistant Attorney General, Thomas Raine. Jace Frank Eden appeared on behalf of Applicant TEC The Eden Company, Inc.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

Background

On or about September 27, 2016, Jace Frank Eden filed a license reactivation application for License No. 161698 issued by the Registrar of Contractors, (hereinafter “Registrar”).

Jace Frank Eden, (hereinafter “Mr. Eden”), is listed as the owner and qualifying party on the application.

On the September 27, 2016 application, Mr. Eden disclosed that he was convicted of DUI on April 5, 2012 in Navaho County Superior Court, (CR2009-0960).

On April 5, 2012, Mr. Eden was convicted of Aggravated DUI, a class 4 felony, in Navaho County Superior Court, (CR2009-0960).

On or about July 9, 2010, Mr. Eden pled guilty to Stalking, a class five felony, and was sentenced to 3 years of probation.

On September 1, 2011, Mr. Eden pled guilty to Sexual Abuse, a class five felony. Mr. Eden also pled guilty to Aggravated DUI, a class four felony. Mr. Eden violated his probation when he was found guilty of Sexual Abuse. Mr. Eden was sentenced to 5 years of prison.

On April 29, 2016. Mr. Eden was released from prison. Mr. Eden was ordered parole for 1 day for every seven days served.

On February 1, 2017, Mr. Eden was released from parole. See Exhibit T.

There was no evidence presented that charges have been set aside or that rights have been restored.

Mr. Eden’s September 27, 2016 license reactivation application asked at question No. 6, “[h]as any person listed on the license ever been convicted of a felony or misdemeanor, or currently have a felony charge pending: If yes, provide the conviction date, charge and court that issued the final sentence? (use additional paper if needed)”.

Mr. Eden disclosed on the September 27, 2016 license reactivation application that he had been convicted of a DUI on April 5, 2012 in Navaho County Superior Court, (CR2009-0960).

Mr. Eden failed to disclose his 2011 criminal convictions for Aggravated DUI, Stalking, and Sexual Abuse.

Testimony of Bonny Allan, Esq.

Bonny Allan, Esq., (hereinafter “Ms. Allan”), testified that she is a Staff Attorney for the Registrar. She stated that she prepares felony review files for the good character committee. Ms. Allan stated that she reviews the files for character issues. She testified that she prepared a packet and drafted the Notice of License Denial of Mr. Eden’s license reactivation application. Ms. Allan testified that she recommended a denial to the committee and the committee made the final decision.

Ms. Allan testified that Mr. Eden’s application was denied due to his felony convictions and because he failed to disclose all of his convictions on the application. She contended that the Registrar instructed Mr. Eden to use additional paper if needed and he did not do so.

Ms. Allan testified that after a criminal background check revealed that Mr. Eden had convictions which were not disclosed, the Registrar requested that Mr. Eden provide documentation regarding his prior convictions. Mr. Eden provided additional documentation regarding his 2011 convictions for Sexual Assault, Stalking and Aggravated DUI.

On cross examination, Ms. Allan testified that she did not include the additional information provided by Mr. Eden in her presentation to the committee. Ms. Eden also testified that she did not provide include Mr. Eden’s appeal of his convictions to the Ninth Circuit in her presentation to the committee.

The Registrar’s position was that Mr. Eden’s consent to allow the Registrar to perform a background check was not a disclosure. The Registrar contended that a criminal background check does not always reveal a person’s entire criminal history.

Testimony of Jace Frank Eden

Mr. Eden testified that he only provided one prior conviction on the September 27, 2016 license reactivation application because the application asked for the conviction date and provided only a few lines to report it. However, Mr. Eden failed to attach additional paper to provide a full disclosure of all of his convictions.

Mr. Eden also contended by authorizing the Registrar to conduct a criminal background check on the September 27, 2016 reactivation application, he disclosed his prior convictions because he was aware that the Registrar would find his entire criminal record through the background check.

Mr. Eden testified that he provided all of the documentation related to his prior convictions after the Registrar requested the information. Mr. Eden also testified that he provided the Registrar with documentation regarding his appeal of his convictions to the Ninth Circuit Court of Appeals. He contended that Ms. Allan should have provided the review committee with the documentation regarding the appeal.

Mr. Eden contended that he should have his license reinstated it has been more than one year since his violation pursuant to A.R.S. § 32-1122.

Mr. Eden offered into evidence a certificate which states that he successfully completed a Substantive Abuse Cognitive Life skills Course on July 12, 2016 at the American Community Corrections Institute. He also had admitted a Certificate of Completion from T.G.G. Inc Arizona State Prison – Phoenix West which states that he completed to satisfaction 37.5 hours of Journeys West Advanced Chemical Dependency Lecture Stages I&II – State of Arizona DUI Levels I&II on December 1, 2009.

Mr. Eden also had admitted a certification of completion sitting that Mr. Eden attended and completed a MADD Victim Impact Panel on April 11, 2007. Mr. Eden also had admitted a certificate showing that he completed a Defensive Driving Course in 2008.

Mr. Eden also had admitted a letter from his parole officer which stated that Mr. Eden was not mandated to register as a sex offender.

Testimony of Tom Tang

Tom Tang testified that he has known Mr. Eden since 2006. He stated that he has never seen Mr. Eden act inappropriately towards anyone. He stated that he does not believe that M. Eden would be a threat to him, but that he does not know about other people. Mr. Tang testified that he would recommended Mr. Eden to other people. others as a contractor and has done so in the past. Mr. Tang testified that he met Mr. Eden though Mr. Eden’s ex-wife. Mr. Tang testified that he likes Mr. Eden’s work. Testimony of John Tomerlin

John Tomerlin testified that he has known Mr. Eden for approximately since April of 2016. Mr. Tomerlin testified that he has never witnessed Mr. Eden act inappropriately toward anyone and he has no reason to believe that he would harm the public. Mr. Tomerlin testified that he would recommend Mr. Eden to other people and would hire him as a contractor. He stated that he attends Kingdom Hall with Mr. Eden. He testified that Mr. Eden has keys to his home.

Testimony of Nancy Tomerlin

Nancy Tomerlin testified that Mr. Eden is extremely polite and she has never witnessed Mr. Eden act inappropriately toward anyone. She testified that she has no reason to believe that Mr. Eden would harm the public. Ms. Tomerlin testified that she would recommend Mr. Eden to other people and would hire him as a contractor. Ms. Tomerlin testified that she attends Kingdom Hall with Mr. Eden.

Testimony of Tom Graves

Tom Graves testified that he has known Mr. Eden for approximately 16 years. Mr. Graves testified that he has spent time a lot of time with Mr. Eden since he was released from prison. Mr. Graves testified that he has never witnessed Mr. Eden act inappropriately toward anyone and he has no reason to believe that Mr. Eden would harm the public. Mr. Graves testified that he would recommend Mr. Eden to other people and would hire Mr. Eden as a contractor.

Testimony of Lindsey Waldrup

Lindsey Waldrup testified that she stated that she rents a commercial building from Mr. Eden. Ms. Waldrup testified that she trusts Mr. Eden as if he were a part of her family. Ms. Waldrup testified that she has never witnessed Mr. Eden act inappropriately toward anyone and she has no reason to believe that he would harm the public. Ms. Waldrup testified that she would recommend Mr. Eden to others as a contractor.

Testimony of Jason Waldrup

Jason Waldrup testified that he has known Mr. Eden for approximately 6 months. Mr. Waldrup testified that he has never witnessed Mr. Eden act inappropriately toward anyone and he has no reason to believe that Mr. Eden would harm the public. Mr. Waldrup testified that he would recommend Mr. Eden to others as a contractor. Mr. Waldrup testified that Mr. Eden is the “best contractor that he has worked with.” Mr. Waldrup testified that Mr. Eden is an honest man. Mr. Waldrum testified that he rents a building from Mr. Eden to operate his donut business. Mr. Waldrup testified that Mr. Eden is a customer and a handyman.

Testimony of Addie Bethoon

Addie Bethoon testified that she and Mr. Eden attend the same Kingdom Hall. She testified that there are many children who attend the Kingdom Hall. Mr. Bethoon testified that she has known Mr. Eden since 1998. She testified that she has attended social events with Mr. Eden since he was released from prison. She testified that she has never witnessed Mr. Eden act inappropriately to anyone.

Ms. Eden also admitted on cross examination that she was formerly on Mr. Eden’s contractor’s license.

Testimony of Yvonne Schneider

Yvonne Schneider testified that she has known MR. Eden approximately a year. Mr. Schneider testified that she is a tenant in one of Mr. Eden’s properties. She stated that she sees Mr. Eden almost every day. Ms. Schneider testified that she has never witnessed Mr. Eden acting inappropriately to anyone. She stated that she has no reason to believe that Mr. Eden would be a threat to the public. Ms. Schneider testified that she would hire Mr. Eden as a contractor and would recommend him to others.

Testimony of Brian Kirby

Brian Kirby, (hereinafter “Mr. Kirby”), testified that he has been the Chief of Licensing of the Registrar since January of 2017. He stated that prior to that time he was the manager of Licensing. He stated that each application is evaluated on a case by case basis. He testified that there is no automatic denial for felonies, but that the committee considers the type of felony, the time that has passed since probation or incarceration has ended along with other factors. Mr. Kirby testified that sexual crimes are given more weight because contractors enter the homes of the public.

Mr. Kirby testified that Mr. Eden was still on parole at the time that he field the reactivation application. Mr. Kirby testified that Mr. Eden’s application was denied because of his criminal convictions and because he failed to provide a full disclosure of his convictions on the application.

Mr. Kirby was asked by Assistant Attorney General Thomas Raine whether the testimony from Mr. Eden’s witnesses and the letter from Mr. Eden’s parole officer changed his decision regarding the license denial. Mr. Kirby responded that due to the severity of the crimes committed and the short amount of time from Mr. Eden’s release from prison and his application, he has not met his burden to show that he has good character.

CONCLUSIONS OF LAW

The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.

A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

A.R.S. §32-1122(D) provides in pertinent part that to obtain a contractor’s license, a person shall be of good character and reputation. Lack of good character and reputation may be established by showing that the person has committed any act which is grounds for suspension or revocation of a license.

Mr. Eden was convicted of two class five felonies, Sexual Abuse and Stalking. Mr. Eden was convicted twice of Aggravated DUI, a class four felony. The Registrar’s concern in this case is legitimate and well-founded. A person with a criminal record must be given close scrutiny and careful consideration when he applies for a professional license.

Once good character is shown as absent, it is not automatically regained by the mere passage of time. The concern of the Registrar is essential and legitimate in light of Mr. Eden’s past convictions for Sexual Abuse, Stalking and Aggravated DUIs.

The conviction of multiple crimes is not a permanent bar to being licensed. However, Mr. Eden has the burden of proving by the preponderance of the evidence that he has resolved the issues that led to the commission of the Stalking, Sexual Abuse and DUI convictions to establish that he has sufficient good character and reputation to satisfy the statutory requirement for licensure as a contractor.

Mr. Eden failed to meet his burden of proof to establish that he has sufficient good character and reputation to satisfy the statutory requirement for licensure in this matter pursuant to A.R.S. § 32-1122(D).

Mr. Eden contended that he should have his license reinstated because it has been more than one year since his violations occurred. Under A.R.S. § 32-1122(E), a person shall not have had a license refused or revoked within one year prior to the person’s application. However, a person is not entitled to have a license reactivated because more than a year has passed since the individual violated any of the licensure provisions.

Although Mr. Eden has presented evidence that he has altered his character from that which existed when the acts underlying the above-mentioned convictions occurred, not enough time has passed since Mr. Eden’s convictions and his release prison to establish rehabilitation.

The evidence presented at hearing established that Mr. Eden failed to disclose his felony convictions for Stalking, Assault and Aggravated DUI on the September 27, 2016 license reactivation application.

This Tribunal concludes that Mr. Eden violated the charged provision of A.R.S. § 32-1154(A)(7) and 32-1154(A)(5).

Consequently, this Tribunal concludes that Mr. Eden’s application for licensure should be denied.

RECOMMENDed order

Based on the foregoing, it is recommended that the Registrar affirm the decision to deny Jace Frank Eden’s License Reactivation Application for License No. 161698.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty days from the date of that certification.

Done this day, March 27, 2017.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors